The petitioners are the accused persons in C.C. No. 5550f2002, on the file of the Court of the Judicial Magistrate of the first class II, Kanjirapally. The offences alleged against them are under Sections 448, 294(b) and 506(1) read with Section 34 of the Indian Penal Code. On appearance before the Court below, they filed an application under Section 258 of the Code of Criminal Procedure, which was dismissed by the trial Court and the order of the trial Court was confirmed in Crl. R.P.No. 18 of 2003, on the file of the Court of Session. Kottayam. The prayer in the Crl. M.C. is to quash Annexure-B order in Crl. R.P. No. 18 of 2003 as well as to quash all the proceedings in C.C.No. 555 of 2002, on the file of the Court of the Judicial Magistrate of the first class II, Kanjirapally.

2. It is submitted by the counsel for the petitioner that even if all the allegations contained in Annexure-A FIR are taken as true, no offence is made out against the petitioners. Accused No. 1 is an advocate while accused No. 2 is a member of the panchayat. It is stated in Annexure-A FI R that the accused came to the police station and enquired about the petition submitted by Soosan, the wife of the second accused and in respect of which Crime No. 206 of 2001 was registered. The further allegation in the FI R is as follows:

(Verancular matteromitted.. ..Ed.)

3. Sri. K. Ramakumar, learned counsel appearing for the petitioners, submitted that the allegations made in the FI R do not constitute an offence under Section 294(b) of the Indian 194 Penal Code. He relied on the decisions in Santhilal v. Prameswaran Pillai , P. T. Chacko v. Nainan Chacko, Chacko George v. State of Kerala, and Ranjit v. Udeshi v. State of Maharashtra, in support of this contention.

4. Section 294 of the Indian Penal Code reads as follows:

"294. Obscene acts and songs: - Whoever, to the annoyance of others-

(a) does any obscene act in any public place, or

(b) Sings, recites or utters any obscene song, ballad or words, in or near any public place.

Shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both."

In order to constitute an offence under Section 294(b), the accused mist sing, recite or utter any obscene song. Ballad or words, in or near any public place. The question is whether the words allegedly uttered by the accused would constitute obscene words.

5.lnP. T. Chackov. Nainan Chacko(supra). Justice K.K. Mathew (as His Lordship then was) considered the question whether the words (Vernacular matter omitted ... Ed) uttered by the first accused would constitute an offence under Section 294(b) and whether those words would be obscene. In paragraph 50f the judgment it was held thus:

"5. The only point argued was that the 151 accused has not committed an offence punishable under Section 294(b) IPC, by uttering the words above-mentioned. The Courts below have held that the words uttered were obscene and the utterance caused annoyance to the public. I am not inclined to take this view. In The Queenv. Hicklin 1963-3-Q.B.360 at 371 Cockburn C.J. laid down the test of 'obscenity' in these words:

".......the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences."

This test has been uniformly followed in India. The Supreme Court has accepted the correctness of the test in Ranjit D. Udeshi v. State of Maharashtra (supra). In Samuel Roth v. USN, Chief Justice Warren said that the test of obscenity is the "substantial tendency to corrupt by arousing lustful desires".

Mr. Justice Harlan observed that in order to be 'obscene' the matter must "tend to sexually impure thoughts". I do not think that the words uttered in this case have such a tendency. It may be that the words are defamatory of the complainant, but I do not think that the words are 'obscene' and the utterance would constitute an offence punishable under Sect